## Facts

- B.N. and K.N. attended a daycare operated by Francis and Daniel Keller from March to August 1991.
- The children’s parents alleged Daniel Keller physically and sexually abused children at the daycare during that period.
- The parents alleged Francis Keller told defendant Janise White that Daniel Keller had abusive habits toward children.
- The parents further alleged defendants Douglas Wayne Perry, Janise White, and Raul Quintero witnessed Daniel Keller sexually abuse children in the Kellers’ home and did not intervene or report to authorities.
- The parents sued the Kellers and also sued Perry, White, and Quintero, asserting negligence per se and gross negligence based on violation of Texas’s mandatory child-abuse reporting statute, which requires “any person” with “cause to believe” abuse has occurred or may occur to report and makes knowing failure to report a misdemeanor.
- The trial court granted summary judgment for Perry, White, and Quintero on all claims; the court of appeals reversed as to negligence per se and gross negligence; the Texas Supreme Court granted review.

## Issues

1. Whether plaintiffs may maintain a negligence per se claim based solely on violation of Texas’s mandatory child-abuse reporting statute.
2. Whether, in deciding to adopt a penal statute as a tort standard of care, courts should decline where the statute’s duty is broad, the standard is indeterminate, and the Legislature provided only criminal penalties without a civil remedy.

## Decision

- The Texas Supreme Court reversed the court of appeals and rendered judgment that plaintiffs take nothing against Perry, White, and Quintero.
- The Court held that violation of the Family Code’s mandatory reporting statute did not support negligence per se under these circumstances.
- Because plaintiffs did not preserve a common-law negligence theory, the Court did not decide whether Texas common law should recognize a duty to report child abuse in some circumstances.

## Legal Principles

- Negligence per se is not automatic upon violation of a penal statute; courts must decide whether to adopt the statutory requirement as the civil standard of care.
- A negligence per se theory generally presupposes an underlying common-law duty; using a statute to impose liability where the duty exists only by legislation risks creating new tort duties by judicial decision.
- Factors relevant to declining negligence per se include: (1) an indeterminate statutory trigger requiring subjective judgment (e.g., “cause to believe” abuse “may” be occurring), (2) legislative choice to provide criminal penalties but no express civil remedy, and (3) risk of disproportionate and open-ended liability given the statute’s reach to “any person” and potentially attenuated causation.
- Even where plaintiffs are within the class the statute seeks to protect and the harm is of the type the statute seeks to prevent, courts may still decline to adopt the statute as the tort standard.

## Conclusion

The Texas Supreme Court held that the mandatory child-abuse reporting statute, standing alone, could not be used to impose negligence per se liability on alleged witnesses who failed to report, and it rendered a take-nothing judgment on the statutory-based negligence per se and gross-negligence claims.


Perry v. S.N., 973 S.W.2d 301 (Tex. 1998)